United States v. Wilfong

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit

TENTH CIRCUIT June 20, 2013

Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,

Plaintiff – Appellee,
No. 12-6065
v. (D.C. No. 5:11-CR-00192-F-1)
(D. W.D. Okla.)
NEIL JASON WILFONG,

Defendant - Appellant.

ORDER AND JUDGMENT*

Before O'BRIEN, EBEL, and MATHESON, Circuit Judges.

Neil Wilfong appeals from his conviction and sentence for a violation of 18 U.S.C.

§ 922(g)(1) (felon in possession of a firearm). He contends the evidence supporting his

conviction should have been suppressed because it was collected after a GPS device was

placed on a pickup truck he confiscated from his mother. In addition to his novel, but

*
This order and judgment is an unpublished decision, not binding precedent. 10th
Cir. R. 32.1(A). Citation to unpublished decisions is not prohibited. Fed. R. App. 32.1.
It is appropriate as it relates to law of the case, issue preclusion and claim preclusion.
Unpublished decisions may also be cited for their persuasive value. 10th Cir. R. 32.1(A).
Citation to an order and judgment must be accompanied by an appropriate parenthetical
notation B (unpublished). Id.
improbable, Fourth Amendment arguments, he claims he should not have been sentenced

under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e), because he had not

been previously convicted of three qualifying felonies. Finding no merit to his

arguments, we affirm.

I.

BACKGROUND

On January 15, 2011, under the shadow of an outstanding arrest warrant for

violating his supervised release following a federal prison term, Wilfong arrived at the

home of his mother, Francis, and his brother, Eric, in Moore, Oklahoma. During a

dispute with his brother, Wilfong pulled out a gun, pointed it at Eric, and then fired a shot

into the floor at Eric’s feet. He then took his mother’s keys to her pickup and drove it

away.

Eric reported the events and the theft of the pickup to the local police. A records

check revealed Wilfong’s outstanding federal warrant and prompted the police to contact

Deputy United States Marshall Michael Albright and to give Eric his number. Albright

spoke with Eric that night and left him a contact number in the event he might learn his

brother’s whereabouts. Eric telephoned Albright the next day to tell him his mother’s

pickup was seen in the parking lot of an apartment complex in Oklahoma City. Albright

and officers from the Oklahoma City Police Department located the pickup and set up

surveillance, but Wilfong did not return to it. Albright received permission from Eric to

place a Global Positioning System (GPS) tracking device on the pickup. The next

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morning, the GPS registered the pickup’s movement. It eventually stopped in the parking

lot of another apartment complex.

Albright and the other officers again set up surveillance. Between 11 a.m. and 12

p.m., Wilfong entered the pickup and drove away. Various law enforcement officials

followed. When a police officer engaged his car lights to stop the pickup, Wilfong hit the

gas and the chase was on.

Ignoring stop signs and zigzagging through traffic, Wilfong sped through

neighborhood streets. Several times he turned the pickup around and headed straight for

the police cars, causing them to pull onto the curbs to avoid collision. At one point,

Deputy Sheriff Chuck McNeill, who was chasing Wilfong in a squad car directly behind

the pickup, saw Wilfong look behind through the back window, brandish a gun, and

smile. McNeill radioed what he had seen to the other officers.

Postman Timothy Baden heard the commotion as he delivered mail on his route.

His large mail truck was on the right side of the road. As he sat inside, he saw the red

pickup speed past and swerve to the right lane, almost colliding with his vehicle. He saw

the driver lean over and toss something out of the passenger window. The object landed

in the grass as the pickup sped off. The police followed the pickup with their lights

flashing and sirens blaring. Baden left his vehicle and went to the place where he had

seen the object land. It was a gun. He called 911 and took pictures of the gun with his

phone. Wisely, he did not touch the gun as he waited for police to arrive.

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 In the meantime, Wilfong eluded the officers. The pickup was found in the

parking lot of yet another apartment complex with the driver’s door wide open. Wilfong

was later apprehended at a house in Del City, Oklahoma.

A. Procedural History

Wilfong moved to suppress the gun. He claimed the placement of the GPS device

was an illegal search. The district judge concluded Wilfong did not have standing to

challenge the search and denied the motion.

The jury found Wilfong guilty of being a felon in possession of a firearm. Before

sentencing, the prosecution notified him it would seek a sentencing enhancement under

the ACCA based on four of his prior convictions. He objected to the use of two of the

convictions—larceny under Okla. Stat. tit. 21 § 1708 and using a telephone to

communicate a bomb threat under 18 U.S.C. § 844(e)—because neither conviction was a

crime of violence. The judge disagreed and sentenced him to 300 months imprisonment.

II.

DISCUSSION

A. Motion to Suppress

According to Wilfong, the gun should have been suppressed because his legitimate

expectation of privacy in the pickup was violated when the GPS was attached to it. He

also argues, in much detail, that the officer’s failure to return the pickup to his mother at

the first opportunity was a form of entrapment by estoppel giving him standing to

challenge the placement of the GPS on the pickup. And, he says, because Eric Wilfong

was not authorized to consent to the GPS placement, the gun was the fruit of an illegal

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search. See United States v. Jones, 132 S. Ct. 945, 948, 954 (2012) (concluding law

enforcement violated the Fourth Amendment when they placed a GPS tracking device on

the undercarriage of a vehicle for 28 days).

“When reviewing the denial of a motion to suppress, we view the evidence in the

light most favorable to the government, accept the district court’s findings of fact unless

clearly erroneous, and review de novo the ultimate determination of reasonableness under

the Fourth Amendment.” United States v. Apperson, 441 F.3d 1162, 1184 (10th Cir.

2006) (quoting United States v. Katoa, 379 F.3d 1203, 1205 (10th Cir.2004)).

“[W]hether a defendant has standing to challenge a search is subject to de novo review.”

United States v. Worthon, 520 F.3d 1173, 1178 (10th Cir. 2008) (quotation marks

omitted).

1. Entrapment by Estoppel

Wilfong argues that when law enforcement placed the GPS tracking device on the

pickup rather than returning it to his mother, this empowered him to use the vehicle and

thus gave him standing to object to the search. He suggests this situation is analogous to

entrapment by estoppel.

The defense of entrapment by estoppel is implicated where an agent
of the government affirmatively misleads a party as to the state of the law
and that party proceeds to act on the misrepresentation so that criminal
prosecution of the actor implicates due process concerns under the Fifth
and Fourteenth amendments. Thus, there must be an active misleading by a
government agent, and actual reliance by the defendant which is reasonable
in light of the identity of the agent, the point of law misrepresented, and the
substance of the misrepresentation.

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Apperson, 441 F.3d at 1204-05 (citations and quotation marks omitted). Wilfong was not

misled by an agent of the government. In fact, he had no contact with any government

agent until he instigated a life-endangering high-speed chase. Wilfong’s entrapment

theory is unavailing.

2. Privacy Interest

As Wilfong had no privacy interest in the stolen vehicle, he lacked standing to

challenge the search. See Worthon, 520 F.3d at 1183 (observing there is “no ‘legitimate

expectation of privacy’” when defendant is not in “‘lawful possession or custody of the

vehicle’”) (quoting Rakas v. Illinois, 439 U.S. 128, 143 (1978)).

3. Consent to Search

Even if Wilfong had standing, his attempt to suppress the gun would likely be

unsuccessful for several reasons. First, “[v]oluntary consent by a third party with actual

or apparent authority is a well-established exception to the warrant requirement.” United

States v. Benoit, 713 F.3d 1, 8 (10th Cir. 2013) (citation omitted). “Apparent authority

may be found if the facts available to the officer at the time of the search would lead a

person of reasonable caution to believe that the consenting party had authority over the

premises.” Id. (citation and quotation marks omitted). Actual authority exists “if that

third party has either (1) mutual use of the property by virtue of joint access, or (2)

control for most purposes.” United States v. Andrus, 483 F.3d 711, 716 (10th Cir. 2007)

(quoting United States v. Rith, 164 F.3d 1323, 1328 (10th Cir.1999)). “Whether apparent

authority exists is an objective, totality-of-the-circumstances inquiry into whether the

facts available to the officers at the time they commenced the search would lead a

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reasonable officer to believe the third party had authority to consent to the search.” Id. at

716-17.

In this instance, Albright knew Eric lived with his mother. Eric had made the call

to alert the authorities to the theft of the truck. After his mother signed the complaint,

Eric had been the only contact on behalf of his mother, was actively involved throughout

the investigation, and alerted the officers to the initial location of the truck after the theft.

When Eric consented to the placement of the GPS, Albright could reasonably believe he

had the authority to do so.

4. Exception to Exclusionary Rule—Purged Taint

Second, even if the search is a Fourth Amendment violation under Jones, the

exclusionary rule (including the fruit of the poisonous tree doctrine) is not constitutional

law, but merely a means of insuring constitutional compliance by the executive branch.

Davis v. United States, 131 S. Ct. 2419, 2426 (2011); United States v. Lee Vang Lor, 706

F.3d 1252, 1257 (10th Cir. 2013). It should not be applied when the costs of application

exceed the benefits of deterring the police. Stone v. Powell, 428 U.S. 465, 486-87 (1976).

Accordingly, the exclusionary rule is subject to three exceptions recognized by the

Supreme Court. The “independent source” exception allows the admission of evidence

discovered by legal means through sources unrelated to the illegal search. Silverthorne

Lumber Co. v. United States, 251 U.S. 385, 392 (1920). The “attenuated basis” exception

applies when the nexus between the government’s illegal conduct and the evidence is so

weak that the taint of the illegality is dissipated. Segura v. United States, 468 U.S. 796,

805 (1984) (citing Nardone v. United States, 308 U.S. 338, 341 (1939)). Finally, the

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“inevitable discovery” exception allows evidence to be introduced if the government can

show the tainted evidence would inevitably have been discovered through lawful means.

Nix v. Williams, 467 U.S. 431, 444 (1984).

This case is very similar to United States v. Boone, where we concluded the

attenuated basis exception applied when the defendants engaged police in a high-speed

chase. 62 F.3d 323, 326 (10th Cir. 1995). In Boone, the officer illegally searched a

couple’s car during a traffic stop. When the officer stepped away, they jumped into the

car and drove off. Id. at 324. The officer twice told them to stop, but they ignored his

commands. Id. A chase exceeding 100 miles per hour followed, during which five

bottles “coated with phencyclidine (“PCP”)” were thrown out the window of the car. Id.

at 324-25. The defendants moved to suppress this evidence based on the illegality of the

initial search. We recognized “the discovery of evidence subsequent to a primary

illegality does not necessarily make the evidence the product of an ‘exploitation of that

illegality. ’” Id. at 325 (quoting Wong Sun v. United States, 371 U.S. 471, 488 (1963).

If evidence is abandoned under circumstances “sufficiently attenuated from . . . [an]

illegal car search, then the evidence may be admitted at trial.” Id.

We applied the three factors articulated in Brown v. Illinois, 422 U.S. 590, 603–04

(1975), by which a court may determine if seized evidence has been purged of the taint of

the original illegality—(1) “the lapsed time between the illegality and the acquisition of

the evidence”; (2) “the purpose and flagrancy of the official misconduct”; and (3) “the

presence of intervening circumstances.” Boone, 62 F.3d at 325-26. We found the third

factor dispositive, writing:

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 It is true that Defendants threw the bottles out of the vehicle and onto the
road while being chased, but police pursuit alone is not enough to “render
[an] abandonment involuntary.” Certainly, [the officer’s] initial illegal
search did not cause the Defendants to flee at a high rate of speed or to
throw bottles of PCP onto the highway. Had the Defendants left the PCP
bottles in the car, we recognize that, under the unappealed decision of the
district court, the police officers would not have had the right to search the
car and the PCP may not have been admitted into evidence. But that is not
what occurred. Under these circumstances, it would be nonsensical to hold
that [the] officer had no right to collect the evidence of drug possession that
Defendants voluntarily discarded onto the highway. The district court did
not err by denying Defendants' motion to suppress the PCP.

Id. at 326 (quoting United States v. Morgan, 936 F.2d 1561, 1570–71 (10th Cir. 1991)

(defendant's decision to discard evidence without any mind to its protection from

inspection qualifies as voluntary abandonment that is sufficient to attenuate)).

The facts occurring after the search here are nearly identical. The placement of

the GPS did not cause Wilfong “to flee at a high rate of speed” or cause him to throw his

gun out the window. Id. His conduct following the allegedly illegal search purged any

taint on the evidence.

5. Exigent Circumstances

Finally, it is not clear Jones would be dispositive here. Jones held the placement

of a GPS device is a search if there is a trespass and the device is used to obtain

information. But, the Supreme Court declined to consider whether the result would be

the same if the “officers had reasonable suspicion, and indeed probable cause, to believe

that [Jones] was a leader in a large-scale cocaine distribution conspiracy.” Jones, 132 S.

Ct. at 954. It concluded the government had forfeited that argument. Id. Here, Wilfong

was subject to an existing warrant for his arrest, and the placement of the GPS was not to

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obtain information connecting him to a crime but to find and arrest him. The situation

looks much like exigent circumstances (an armed felon making an escape) since Wilfong

was using the truck to escape arrest and could return any moment and drive away. See

Georgia v. Randolph, 547 U.S. 103, n. 6, 126 S. Ct. 1515, 1524 n. 6, 164 L.Ed.2d 208

(2006) (listing “hot pursuit,” “protecting the safety of . . . police officers,” “imminent

destruction [of a] building,” “likelihood that [a] suspect will imminently flee,” and “a

fairly perceived need to act on the spot to preserve evidence” as exigent circumstances

that might justify a warrantless search of a residence).

6. Summary

Even if Wilfong had standing, his claim the gun must be suppressed is almost

certainly without merit.

B. Armed Career Criminal Act

We now consider whether his convictions for larceny under Okla. Stat. tit. 21 §

1708, and using a telephone to communicate a bomb threat under 18 U.S.C. § 844(e),

qualify as sentence enhancing crimes under the ACCA. Our review is de novo. United

States v. Washington, 706 F.3d 1215, 1217 (10th Cir. 2012), cert. denied, 2013 WL

1758701 (S. Ct. May 20, 2013).

Ordinarily, the maximum sentence for being a felon in possession of a firearm, 18

U.S.C. § 922(g)(1), is 10 years of imprisonment. See 18 U.S.C. § 924(a)(2). Under the

ACCA, however, three (or more) previous convictions for a violent felony or serious

drug offense will increase the punishment to a minimum term of 15 years. See 18 U.S.C.

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924(e). The ACCA defines a violent felony as a crime punishable by more than one year

of imprisonment that:

(i) has as an element the use, attempted use, or threatened use of physical
force against the person of another; or

(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise
involves conduct that presents a serious potential risk of physical injury to
another.

18 U.S.C. § 924(e)(2)(B). The Supreme Court has directed the use of a categorical

approach to determine whether an offense is a violent felony under the residual clause of

18 U.S.C. § 924(e)(2)(B)(ii):

Under this approach, we look only to the fact of conviction and the
statutory definition of the prior offense, and do not generally consider the
particular facts disclosed by the record of conviction. That is, we consider
whether the elements of the offense are of the type that would justify its
inclusion within the residual provision, without inquiring into the specific
conduct of this particular offender.

Sykes v. United States, 131 S. Ct. 2267, 2272 (2011) (quoting James v. United States, 550

U.S. 192, 202 (2007)).

Wilfong concedes he has been convicted of two violent felonies for assault with a

dangerous weapon. The government claims both of the additional convictions it has

enumerated qualify as enhancing convictions under the ACCA. However, only one

additional conviction was necessary to justify the 15-year minimum, so we look to the

clearer conviction. We follow our precedent in United States v. Patillar, 595 F.3d 1138

(10th Cir. 2010), and conclude his conviction for larceny at night is a violent felony.

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 Oklahoma defines larceny as “the taking of personal property accomplished by

fraud or stealth, and with intent to deprive another thereof.” Okla. Stat. tit. 21 § 1701.

Wilfong was convicted for a violation of Okla. Stat. tit. 21 § 1708, which provides:

When it appears upon such trial, that such larceny was committed by
stealing in the night time, from the person of another, the offender shall be
guilty of a felony punishable by imprisonment in the State Penitentiary not
exceeding ten (10) years.

Larceny of a person does not meet the requirements of clause (i), and it is not

among the specific offenses named in clause (ii). Thus, it is violent under this statutory

scheme only if it fits within the so-called residual provision of clause (ii). To be a violent

crime, it must be an offense that “otherwise involves conduct that presents a serious

potential risk of physical injury to another.” 18 U.S.C. § 924(e)(2)(B)(ii). In Patillar, we

considered whether the Oklahoma larceny statute was a violent crime for sentencing

purposes under United States Sentencing Guideline § 4B1.2(a)(2). 595 F.3d at 1139. We

concluded § 1701, the statutory definition of larceny from a person, categorically

described a crime of violence under the residual clause, which applied to Patillar’s

conviction under Okla. Stat. tit. 21 § 1704, grand larceny. We held “[l]arceny from the

person . . . requires ‘intent to deprive another’ of his property. And when the taking is

from a person, the conduct is violent and aggressive because it creates a significant risk

of confrontation between thief and victim.” Id. at 1140.

Wilfong’s attempts to distinguish Patillar are unavailing. First, he argues Patillar

was interpreting a different statue. The definition of larceny in § 1701, however, applies

to both § 1708, as well as Wilfong’s crime, § 1704, Patillar’s crime. The larceny for

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which Wilfong was convicted presents the same risk of confrontation with the victim as

the larceny in Patillar.

Next, he argues Patillar interpreted a violent crime under the Guidelines, not the

ACCA. However, the residual clause in § 4B1.2(a)(2) is identical to language in the

ACCA, the crime is violent if it “otherwise involves conduct that presents a serious

potential risk of physical injury to another.” Patillar, 595 F.3d at 1140. We apply the

same analysis to both. Id.

Finally, Wilfong claims we must use a modified categorical approach1 because

larceny requires “fraud” or “stealth.” Okla. Stat. tit. 21 § 1701. He points to Mitchell v.

State, 408 P.2d 566 (Okla. Crim. 1965), where the court distinguished robbery, (which

requires the application of force or fear), from larceny, (a taking by stealth or fraud).

According to Wilfong, Mitchell interpreted larceny as “[t]aking property without the

awareness of a victim,” which is “inconsistent with risk of violence or confrontation.”

(Appellant’s Op’g Br. 25.) Because his “victim was his own mother,” she “would not

have precipitated a violent confrontation.” (Id. at 24-25.)

We disagree with Wilfong’s interpretation of Mitchell. While the Oklahoma court

discussed the difference between robbery and larceny, it said nothing about the potential

1
When the criminal statute under which the defendant will be sentenced describes
several different generic crimes, the “modified categorical approach” permits a court to
consult the trial record to determine which statutory phrase was the basis of the
defendant’s conviction. Johnson v. United States, 555 U.S. 133, 130 S. Ct. 1265, 1273
(2010). The court may review “charging documents, plea agreements, transcripts of plea
colloquies, findings of fact and conclusions of law from a bench trial, and jury
instructions and verdict forms.” Id.

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risk of violent confrontation when a victim discovers the perpetrator’s stealth or fraud

during the larceny.2 In any event, we have held the statute is categorically a violent

crime. “[O]ne panel cannot overrule the judgment of another panel of this court . . .

absent en banc reconsideration or a superseding contrary decision by the Supreme

Court.” Barber v. T.D. Williamson, Inc., 254 F.3d 1223, 1229 (10th Cir. 2001) (quotation

marks omitted). Patillar governs.

III.

The district court did not err in denying Wilfong’s motion to suppress and

correctly determined his conviction for larceny qualified as a predicate conviction under

the ACCA.

2
In Mitchell, the defendant was convicted of robbery. He argued he did not
commit robbery because the victim was knocked unconscious and therefore didn't know
the property was being taken. The court rejected this argument:

Where one commits the crime of robbery by means of force and fear, the
fact that person robbed is knocked unconscious by an instrument in the
hands of defendant and his billfold and a large sum of money is taken from
his person while he is unconscious, does not reduce the crime to larceny
from the person.

Mitchell, 408 P.2d at 571 (quoting Jennings v. State, 179 P.2d 693 (1947)).

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AFFIRMED.

Matheson, J. joins in parts I., II. A. 1 and 2, II. B., and III.

Entered by the Court:

Terrence L. O’Brien
United States Circuit Judge

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